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Couri v. Gardner

July 29, 2002

GEORGE G. COURI, PLAINTIFF-APPELLANT,
v.
DR. RICHARD GARDNER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

The issue in this appeal is whether the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 applies to a breach of contract claim brought by George G. Couri against Dr. Richard Gardner, a psychiatrist who disclosed his preliminary findings to others without Couri's consent.

Couri retained , Dr. Gardner, a licensed psychiatrist, as a potential expert witness in connection with a divorce proceeding involving his right to parenting time with his daughter. Couri paid Dr. Gardner $12,000. Dr. Gardner interviewed Couri, his wife, and their daughter, and prepared a preliminary report that he distributed simultaneously to Couri's wife, his attorney, and their daughter's court-appointed guardian ad litem. Dr. Gardner never obtained Couri's consent to distribute the report to the other parties. Consequently, Couri filed a complaint against Dr. Gardner for, among other causes, breach of contract.

Dr. Gardner moved to dismiss Couri's complaint for failure to submit an affidavit of merit. Couri contended that he was not required to submit an affidavit because his claim was based on breach of contract and not negligence. The trial court dismissed Couri's complaint for failure to submit the affidavit. A divided Appellate panel affirmed, holding that Couri's claim was a malpractice action for professional negligence requiring expert testimony and not a contract action. Judge Rodriguez dissented, concluding that the issue was not deviation from the accepted standards of a psychiatrist, but, rather, that Dr. Gardner did not comply with the terms of the retainer agreement.

Couri appealed as of right based on Judge Rodriguez's dissent.

HELD: George G. Couri's breach of contract claim does not require proof of a deviation from the professional standard of care to be provided by a psychiatrist, and thus the claim lies beyond the purview of the Affidavit of Merit Statute. The dismissal of Couri's complaint is reversed and the matter is remanded to the Law Division.

1. The overall purpose of the Affidavit of Merit Statute is to ensure that meritorious lawsuits are identified at an early stage of litigation. The applicability of the statute to Couri's claim depends on the specific nature of Couri's claim and whether the statute applies to breach of contract claims generally. When statutory language is clear on its face, the role of this Court is to enforce the statute according to its terms, but when a literal interpretation conflicts with the overall purpose of a statute, that interpretation should be rejected. (Pp. 5-7)

2. The Court must consider three prongs in analyzing whether the Affidavit of Merit Statute applies to a particular claim: the nature of the injury; the cause of action; and, the standard of care. The first prong requires that the action must be for "damages for personal injuries, wrongful death or property damage." In this case, Couri ultimately sought a return of his $12,000 retainer and other litigation costs. Therefore, his claim does not satisfy the first prong of the statute. This alone is sufficient for a reversal. However, the Court is faced with a conflict in the Appellate Division, whether the statute should apply to a breach of contract claim, and will therefore address that issue as well. (P. 8-10)

3. There is a divergence of opinion in the Appellate Division whether the Affidavit of Merit statute ever should apply to a breach of contract claim. In Darwin v. Gooberman, 339 N.J. Super. 467 (App. Div.), certif. denied, The opinion of the court was delivered by: Zazzali, J.

Argued March 12, 2002

In this appeal we are called upon to determine the applicability of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (statute) to plaintiff's claim.

Specifically, we must decide whether plaintiff George Couri was required to submit an affidavit of merit in an action brought against a psychiatrist retained by plaintiff as a potential expert witness in connection with visitation rights in a matrimonial action. Plaintiff contends that by the psychiatrist disseminating his preliminary report without plaintiff's consent to plaintiff's wife and to their child's guardian ad litem, the psychiatrist breached his contract with plaintiff. Accordingly, plaintiff argues, pursuant to the plain language of the statute, he was not required to file an affidavit of merit. The trial court concluded that the action was for malpractice and not breach of contract, thus requiring an affidavit of merit. A majority of the Appellate Division affirmed.

In his dissent, Judge Rodríguez found that plaintiff's claim sounded in contract and thus no affidavit of merit was required pursuant to the statute. We agree with Judge Rodríguez that no affidavit of merit was required in plaintiff's case and thus reverse but on different grounds.

I.

In July 1998, plaintiff was involved in a divorce proceeding against his wife. At issue was plaintiff's right to parenting time with his daughter. Plaintiff's attorney contacted defendant, Dr. Richard Gardner, a licensed psychiatrist, and retained him as an expert on the issue of visitation. Plaintiff paid defendant $12,000 to prepare a report and testify. There was no written contract memorializing the oral agreement. The only portion of the agreement in writing was defendant's fee schedule.

After interviewing plaintiff, his estranged wife, Deborah Couri, and their daughter, defendant wrote a preliminary report that he distributed simultaneously to plaintiff's attorney, his wife, and their daughter's court- appointed guardian ad litem. Defendant did not show the report to plaintiff or plaintiff's attorney before distributing it, nor did he seek or receive the consent of plaintiff or plaintiff's attorney to distribute the report. According to plaintiff, the guardian "returned the ...


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